Category Archives: Lawyers use of specialization and expertise ethics

The Florida Bar will file petition with advertising rule amendment regarding lawyer’s use of “expert” and “specialist” on October 15, 2016

Hello and welcome to this update of the May 25, 2016 Ethics Alert regarding the proposed amendment to Florida Bar Rule 4-7.14 with new subsection 4-1.14(a)(5) related to claims of “specialization” and “expertise” in advertisements.  The BOG approved the rule amendment and the Bar will file an Omnibus Rules Petition with the proposed rule amendment with the Florida Supreme Court on October 15, 2016 (along with other proposed rule amendments).  The proposed rule revisions are here:  2016 Annual Florida Bar Rules Proposals and the new Rule 4-7.14(a)(5) language is below:

RULE 4-7.14 POTENTIALLY MISLEADING ADVERTISEMENTS

A lawyer may not engage in potentially misleading advertising.

(a) Potentially Misleading Advertisements. Potentially misleading advertisements include, but are not limited to:

(5) a statement that a lawyer is a specialist, an expert, or other variations of those terms unless:

(A) the lawyer has been certified under the Florida Certification Plan as set forth in chapter 6, Rules Regulating the Florida Bar and the advertisement includes the area of certification and that The Florida Bar is the certifying organization;

(B) the lawyer has been certified by an organization whose specialty certification program has been accredited by the American Bar Association or The Florida Bar as provided elsewhere in these rules. A lawyer certified by a specialty certification program accredited by the American Bar Association but not The Florida Bar must include the statement “Not Certified as a Specialist by The Florida Bar” in reference to the specialization or certification. All such advertisements must include the area of certification and the name of the certifying organization;

(C) the lawyer has been certified by another state bar if the state bar program grants certification on the basis of standards reasonably comparable to the standards of the Florida Certification Plan set forth in chapter 6 of these rules and the advertisement includes the area of certification and the name of the certifying organization; or

(D) the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules and, if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement includes a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the lawyer is not board certified in that area of practice.

The new subsection in Rule 4-7.14(5)(a)(D) states that a lawyer is prohibited from stating that he or she is  “a specialist, an expert, or other variations of those terms” unless “the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan.”  In addition, if the lawyer’s area of expertise is an area in which the Bar approves certifications, the lawyer would be required to include “a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program.”

According to the Bar’s filing notice: “Members who desire to comment on these proposed amendments may do so within 30 days of the filing of the Bar’s petition(s). Comments must be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar. Rule 1-12.1, Rules Regulating The Florida Bar, governs these proceedings.”

Bottom line:  As I previously said, it remains to be seen whether the Florida Supreme Court will approve the amendment as drafted and, if it does, whether the restrictions in the amended Bar rule on their face and as applied are in compliance with the federal district judge’s 9/30/15 order finding that the previous rule violated the United States Constitution.  The Order here: 9/30/15 J. Hinkle Order and Injunction.

Stay tuned…and be careful out there.

Disclaimer:  this Ethics Alert  is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway N., Suite 150

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Florida Bar Board of Governors approves Florida Bar advertising rule amendment regarding lawyer’s use of “expert” and “specialist”

Hello and welcome to this update of my May 19, 2016 Ethics Alert regarding the Florida Bar Board of Governors’ final review of the proposed amendment to Florida Bar Rule 4-7.14 related to claims of specialization and expertise in advertisements.  The BOG approved the rule amendment as drafted at its meeting on May 20, 2016 in Palm Beach.  The approved amendment is below with the relevant new language in italics:

RULE 4-7.14 POTENTIALLY MISLEADING ADVERTISEMENTS

A lawyer may not engage in potentially misleading advertising. (a) Potentially Misleading Advertisements. Potentially misleading advertisements include, but are not limited to:

(4) a statement that a lawyer is board certified or other variations of those terms unless:

(D) the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules and, if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement includes a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the lawyer is not board certified in that area of practice.

Bottom line:  As I previously said, it remains to be seen whether this rule amendment is in compliance with the federal court’s order and the United States Constitution on its face and as applied.  If the Bar reasonably interprets the language that the lawyer’s experience must be “reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules”, it may be found to be constitutional if challenged.  Another potential constitutional challenge would be that the rule is vague and ambiguous on its face.  The rule amendment must now be reviewed and implemented by the Florida Supreme Court to become effective.  Stay tuned…

Disclaimer:  this Ethics Alert  is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under 2013 Florida comprehensive advertising rule revisions, Attorney Ethics, Florida Lawyer advertising rules, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising specialties and certification, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyers use of specialization and expertise ethics